1819. Waddy. OCTOBER, return of the Execution and Delivery bond taken in this case, the Decree ought to have been extended so as to enPoindexter join the said Lewis from availing himself at law of those circumstances; and this Court, therefore, proceeding to make such farther decree as the Chancery Court ought to have made, it is farther decreed and ordered, that Bressie Lewis be enjoined from availing himself at law, of the return made on the Execution issued on the Judgment aforesaid, or of the delivery bond given by the said Edward S. Waddy, so as to prevent proceedings against him on the said judgment. Decided, Oct. 29th, 1819. 1. Before the 1st of tled to a re Dickenson and others against Holloway. THE facts in this case, (which was an action of Ejectment in the Superior Court of Caroline County,) were found by a special verdict, and stated by Judge ROANE, in delivering the opinion of this Court, as follows: cents took JOHN HOLLOWAY the elder had issue George Holloway effect,) if a person enti- and Elizabeth Holloway by his first, and John Holloway, version in junr. by his second, marriage. He died in 1770. By fee, expect his Will, he devised the premises in question to his wife ant upon an for life; the reversion in fee descending on the said George estate for life, died in the life time of the tenant for life, such person never had seisin of the inheritance, and therefore could not transmit it to his heir; but the heir of the person last actually seised was entitled.(1) See Co. Litt. 11 b. & 15 a; 3 Co. Rep. 42 a. Ratcliffe's case; Cruise on Real property, 3 Vol. p. 461-467. (1) But note that, "where the person entitled to a remainder or "reversion exercised an act of ownership over it, by granting it for "life or in tail, this was deemed equivalent to an actual seisin of an es"tate, which was capable of being reduced into possession by entry, "and would make the person exercising it a new stock or root of in"heritance. For an entry being impossible, the alienation of a re"mainder or reversion for a certain time, is allowed to be sufficient to "change the descent; because such alienation, being formerly always " attended with attornment, was deemed equal in point of notoriety to an entry on a descent." 3 Cruise, 467-8. as eldest son and heir to his father. 1819. others V. George Holloway OCTOBER, died in 1783, intestate and without issue, leaving the testator's widow then alive and in possession of the premi- Dickenson & ses, who lived, so possessed, 'till the year 1812; after whose death, John Holloway, junr. entered, claiming the Holloway. said land, as heir to his father. Elizabeth the daughter (by the first marriage,) also died in 1812, leaving the appellants her heirs at law, who brought an Ejectment for the premises against John Holloway, junr. On this case, as exhibited by a special verdict, judgment was rendered for the defendant, whereupon the lessors of the plaintiff appealed to this Court. George Holloway having thus died, intestate and without issue, in the year 1783, the widow being in possession of the freehold by virtue of the devise to her for life, the question arises, who was entitled to the reversion in fee of the premises in question? If the subject in controversy had been a present estate in George Holloway, instead of a reversion, a seisin by him would have been indispensable to make his sister his heir. It is from him alone as a stock, and not from her father, that she would have been entitled to succeed in preference to the present appellee, and the maxim is that "non jus sed seisina facit stipitem." If he had not, therefore, a seisin of the freehold, or what is technically called a possessio fratris, she could not inherit to him, but her half brother as heir to his father the person last actually seised. George Holloway had, it is true, the jus proprietatis of the estate in question; but he was deferred as to the enjoyment of the possession, and it was not until a seisin was added to his right, that he could become a stock or ancestor, so as to let in the claim of his sister. Every reason which holds to exclude the brother from being such an ancestor, in relation to a present estate, holds a fortiori as to a deferred one, in which a right of property only, exists, and not a present right of possession. The latter case is, at least, as much without that seisin which is requisite to constitute a stock or ancestor, as the former. OCTOBER, 1819. others V. The possession of a lessee for years is considered as that of the tenant in fee; but it is otherwise of the pos Dickenson & session of a tenant for life. His possession is referred to the freehold estate to which he is himself entitled. Thus Holloway. it is held, in Co. Litt., that, if a father maketh an estate for years, and the lessee entereth and dieth, and the eldest son dieth during the term, the younger son of the half blood shall not inherit, but the sister, because the possession of the lessee is the possession of the eldest son, so as that he was actually seised:-but if the father make a lease for life and dieth, and the eldest son dieth in the life time of the tenant for life, the younger brother of the half blood shall inherit; for the tenant for life is seised of the freehold, and the eldest son had nothing but a reversion expectant upon it, and therefore the youngest son shall succeed as heir to his father who was last seis(a) Co. Litt. ed of the freehold. (a) 15. This passage is quite decisive of the case before us.→ It excludes George Holloway from being such an ancestor as would let in the claim of his sister. But it is contended that the Act of Descents has now made a difference, and lets in the claim of the present appellants. That can not be, as both John Holloway and George Holloway died before it's commencement, unless the Act is to have a retrospective operation. Such a construction is reprobated, 1st, by the general principle that all laws, or at least all which concern rights, are only prospective in their nature; 2dly, that that Act is declared to commence it's operation from and after a future and a given day; and the Court is of opinion that these words, "from and after, &c." are to be considered as if they were set out and repeated in the commencement of every section of the Act; and 3dly, that this is emphatically the case in relation to this Act; it declaring that "henceforth," when any person &c. shall die intestate &c." plainly excluding from it's operation cases of deaths before the commencement of the Act. That Act therefore is not to be regarded, in making a construction, in the case before us: the appellants can in no case be re garded as heirs, but in relation to ancestors dying after the commencement of the Act. On these grounds, we are of opinion that the judgment be affirmed. Jones against Pilcher's devisees. Decided, Nov. 1st, 1819. I. It is not a sufficient a bill of re IN September 1801, a Bill was filed in the High Court of Chancery, by John Jones against the devisees of ground for Edward Pilcher deceased, to obtain a conveyance from view, that the defendants, of a tract of land in Stafford County, which the Complainant alledged he had, by a parol contract, purchased of a certain John Dalgan Attorney in fact of the said Edward Pilcher. certain documents, on which the Complainant's right to a decree depended, to exhibit were lost or not found The Bill stated, that, by a power of Attorney, bearing and which date February 22d 1794, the said Dalgan was authorised he intended to sell the land; that, upon the contract for the purchase, with his orithe plaintiff paid him seventeen pounds in part, and took ginal bill, his receipt, which, together with the said power of At- mislaid by his torney, was annexed to the bill as part thereof; that the Counsel and plaintiff was always ready and willing to perform his until after part of the agreement, by completing the payment of the decree the purchase money, &c. The defendants by their Answer said, that they knew Franklin. nothing of the power of Attorney spoken of in the Bill, Munf. 112. and did not believe that such power was given to the said John Dalgan, who never was in possession of the land, and consequently never had given the plaintiff possession thereof; and that the seventeen pounds were received on a different account. John Dalgan, who was also made a defendant to the Bill, supported by his answer the claim set up by the Complainant; declaring that he considered himself amply and fully possessed of the land under the power of Attorney from Edward Pilcher; that no other person was in possession; that, when he sold the land to the against him. See Wilkinson, 3 1819. NOVEMBER, complainant, he transferred the possession to him, and always conceived him entitled to a conveyance. Jones V. Pilcher's de visees. It seems that the power of Attorney and Receipt, tho' referred to in the Bill, were not filed with it; but two depositions were taken, to prove that such power existed; that, by virtue thereof, Dalgan sold the land to Jones, gave him a title-bond, and directed a certain Chandler Cox, tenant of the land, to pay him the rents; and that the plaintiff paid Dalgan seventeen pounds in part of the purchase money. In June 1809, Chancellor TAYLOR dismissed the Bill with Costs. In September 1815, the plaintiff presented a Bill of Review, alledging that a decrce would not have been pronounced against him, but for the unfortunate accident of the power of Attorney, and Receipt for the seventeen pounds, having been lost or mislaid by his Counsel, and not found until within the last month. This Bill was supported by the affidavit of Thomas R. Rootes, stating, "that the power of Attorney from Edward Pilcher "to John Dalgan, bearing date the 22d day of Febru"ary 1794, and the receipt of John Dalgan to John "Jones for seventeen pounds, in part of land sold "under the said power of Attorney, and bearing date "the 15th March 1794, were delivered to the affiant by "John Jones, prior to the drawing and filing the original "bill in Chancery in the name of the said John Jones "against Sarah Pilcher and others; and that the said "power of Attorney and Receipt were lost or mislaid in "office of the said Rootes, until within the last month, "when they were discovered in a large law book in the "said office." The power of Attorney and Receipt were also exhibited, and made part of the Record. The defendants filed a general demurrer to the Bill of Review; which demurrer was sustained by Chancellor NELSON, (the cause having been transferred to the Superior Court of Chancery for the Fredericksburg District,) and the Bill dismissed with Costs; from which decree the plaintiff appealed to this Court. |